3.2 Bail Conditions, Breach & Appeals
Key Takeaways
- Bail conditions under Section 3 of the Bail Act 1976 may only be imposed to prevent failure to surrender, reoffending, witness interference, or for the defendant's own protection or welfare.
- Breach of a bail condition is not a criminal offence in itself, but grants police a power of arrest under Section 7, requiring the defendant to be brought before a justice within 24 hours.
- Failure to surrender to custody under Section 6 of the Bail Act 1976 is a distinct criminal offence punishable by imprisonment or fine, subject to a statutory defence of reasonable cause.
- Under the rule in R v Nottingham Justices ex parte Davies, courts are not required to hear repeated bail applications unless there is a material change of circumstances or new law/facts.
- The Prosecution has a statutory right of appeal to a Crown Court judge against the grant of bail under Section 1 of the Bail Amendment Act 1993 for offences carrying a custodial sentence.
3.2 Bail Conditions, Breach & Appeals
When a court or police custody officer decides that the presumption in favour of bail applies, consideration shifts to whether conditions must be attached to the grant of bail to mitigate specific risks. This section examines the statutory framework for imposing bail conditions, the legal consequences of breaching conditions or failing to surrender, the rules governing repeated bail applications, and prosecution and defence appellate mechanisms.
Imposition of Conditional Bail under Section 3 Bail Act 1976
Section 3 of the Bail Act 1976 empowers courts and police custody officers to grant conditional bail. However, conditions CANNOT be imposed as a punitive measure or for general administrative convenience. Conditions may only be attached where the court or officer considers them necessary to ensure that the defendant:
- Surrenders to custody at the appointed time and place;
- Does not commit an offence while on bail;
- Does not interfere with witnesses or otherwise obstruct the course of justice; or
- Makes themselves available for the purpose of enabling official reports (e.g. medical or pre-sentence reports) to be prepared.
Conditions may also be imposed for the defendant's own protection or welfare.
Categories of Standard Bail Conditions
- Residence Requirement: Mandatory residing and sleeping at a specified address, with an obligation to notify police of any proposed change of residence.
- Curfew & Electronic Monitoring: Requirement to remain inside the residential premises during specified hours (e.g. 7pm to 7am). Under Section 3AA of the Bail Act 1976, courts may mandate electronic monitoring (tagging) to verify curfew compliance.
- Reporting Conditions: Mandatory reporting to a designated police station at fixed times and days.
- Non-Contact & Exclusion Zones: Strict prohibition on contacting directly or indirectly specified prosecution witnesses, or entering designated geographical exclusion zones (e.g. complainant's neighborhood or retail precincts).
- Passport Surrender & Travel Restrictions: Surrender of travel documents to police to prevent international absconding.
- Sureties and Securities:
- Surety (s.3(4)): A financial guarantee provided by a third party who agrees to forfeit a specified sum of money if the defendant fails to surrender.
- Security (s.3(5)): Direct deposit of money or valuable property by the defendant or another person prior to release.
Breach of Bail Conditions: Section 7 Arrest & Court Powers
It is a fundamental principle of criminal procedure that breach of a bail condition is NOT a criminal offence in itself. A defendant who breaks a curfew or contacts a witness does not commit a separate crime merely by violating that condition.
However, Section 7 of the Bail Act 1976 provides a statutory power of arrest without warrant. A police constable may arrest a person granted bail if the constable has reasonable grounds for suspecting that the person has broken, or is likely to break, any condition of bail.
The Statutory 24-Hour Rule
Following arrest under Section 7, the defendant MUST be brought before a justice of the peace as soon as practicable and in any event within 24 hours of arrest (excluding Sundays, Christmas Day, and Good Friday).
Powers of the Court on a Breach Hearing
Under Section 7(5), if the court is of the opinion that the defendant has broken or is likely to break a condition, the court may:
- Remand the defendant in custody; or
- Re-grant bail on the same conditions or subject to varied, stricter conditions.
If the court is not satisfied that a breach occurred or is likely, it MUST re-grant bail on the original conditions.
Offence of Failure to Surrender: Section 6 Bail Act 1976
In sharp contrast to breach of conditions, Failure to Surrender to custody (FTS) under Section 6 of the Bail Act 1976 IS an independent criminal offence.
A person released on bail who fails without reasonable cause to surrender to custody at the appointed time and place commits an offence under Section 6(1) or 6(2).
| Feature | Breach of Bail Condition (s.7) | Failure to Surrender to Custody (s.6) |
|---|---|---|
| Legal Status | Non-criminal civil/procedural breach | Independent criminal offence (either-way/summary) |
| Power of Arrest | Arrest without warrant under s.7 | Arrest under warrant or s.6 offence powers |
| Burden of Proof | Reasonable suspicion of breach | Criminal burden; defence must prove 'reasonable cause' |
| Penalties | Revocation of bail or varied conditions | Up to 12 months custody (Crown) / 3 months (Magistrates) |
Repeated Bail Applications: The Rule in Nottingham Justices
When bail is refused by a magistrates' court, the defendant has statutory rights regarding further applications:
- First Re-Application (Schedule 1, Part 2A Bail Act 1976): At the first hearing following the initial refusal of bail, the court MUST hear full argument on any application for bail, whether or not new grounds or arguments are presented.
- Subsequent Applications (R v Nottingham Justices ex parte Davies [1981]): At any subsequent hearing after the first re-application, the court is NOT required to hear full legal argument unless the court is satisfied that there has been a material change of circumstances or new legal/factual developments since the previous refusal.
- Certificate of Full Argument: Where a magistrates' court refuses bail after hearing full argument, it must issue a certificate under Section 5(6A) confirming full argument was heard. This certificate is a prerequisite for submitting a defence bail application to the Crown Court.
Bail Appeals: Prosecution & Defence Mechanisms
Defence Bail Applications to Crown Court
Under Section 81 of the Senior Courts Act 1981 and CrimPR Part 14, where a magistrates' court refuses bail or imposes onerous conditions, the defence may apply to a Crown Court judge in chambers. The Crown Court hears the matter de novo.
Prosecution Right of Appeal: Bail Amendment Act 1993
Under Section 1 of the Bail Amendment Act 1993, the prosecution has a statutory right of appeal to a Crown Court judge against a magistrates' court decision to grant bail to a defendant charged with an offence punishable by imprisonment.
Strict Mandatory Conditions for Prosecution Appeal
To maintain a valid prosecution appeal under the 1993 Act, the prosecution must strictly satisfy four mandatory steps:
- The prosecution MUST have formally opposed bail at the magistrates' court hearing;
- Oral notice of appeal MUST be given to the magistrates' court immediately at the conclusion of the hearing (before the defendant is released);
- Written notice of appeal MUST be served on the court and defence within 2 hours of the hearing concluding;
- The Crown Court appeal hearing MUST take place within 48 hours (excluding weekends and bank holidays).
Pending the prosecution appeal hearing, the defendant remains remanded in custody. If the prosecution fails to meet any of these statutory time limits, the appeal lapses automatically and the defendant must be released on bail immediately.
A defendant on conditional bail subject to a 7pm-7am curfew is observed by a police officer walking in a city centre at 10pm. The officer arrests the defendant. The defendant insists that breaking curfew is not a crime and demands immediate release. What is the correct legal position regarding the arrest and subsequent procedure?
A magistrates' court grants bail to a defendant charged with commercial burglary despite prosecution objections. The prosecutor verbally announces an intention to appeal the bail decision immediately at the end of the hearing. What statutory steps must the prosecution follow under Section 1 of the Bail Amendment Act 1993 to maintain the appeal and keep the defendant in custody?
A defendant charged with robbery was refused bail at their first appearance in the magistrates' court. At a second hearing one week later, defence counsel made a full bail application which was also refused. At a third hearing two weeks later, defence counsel seeks to present identical arguments for bail without proposing new conditions or identifying any change in circumstances. How should the court treat this third application under the rule in R v Nottingham Justices ex parte Davies?